1. The question before us is as to the construction of a lease with reference to the provisions of the Registration Act, Section 17, Sub-section 1 (d); in other words, the point to be decided is whether this particular lease is compulsorily registrable as being a lease of immoveable pro perty from'year to year or for any term exceeding one year.
2. The trial Court held that the lease was compulsorily registrable under this section, but the learned Joint Judge has taken the other view.
3. The rent note which witnesses the lease of the property is in the following words :-
We have taken these three fields for cultivation from you yearly (dur salne mate) on condition that we are to pay the assessment. We shall go on paying the assessment to Government so long as you give us the fields for cultivation. In consideration of this we are to have the produce of Nos. 167 and 199. As regards No. 173 we will give you half of whatever the produce may he. We have taken the land for cultivation under the above conditions. If we say anything false or unfair, or if you come to hear of any fraud or deceit on our part or if we practise such fraud or deceit, we will restore possession of the fields to you as soon as you ask us to do so. We shall raise no objection to doing so. You may let the fields for cultivation to any one you please.
4. Now the first words which in this document seem to me significant are the words (sic)which mean annually or year by year. These words taken in connection with the total absence of any date for the expiry of the tenancy seem to me to suggest that the parties contemplated that this lease should operate for a period exceeding one year. It should be remembered that this is a rough inartificial document executed in the mofussil and not an instrument drawn by expert lawyers.
5. The learned Joint Judge, referring to the decision in Mania v. Lallubhai (1900) 2 Bom. L.R. 488 and other cases, says that in his opinion the test as to whether a document of this kind is or is not compulsorily registrable is whether the option of terminating the tenancy is with the tenant or the landlord. As a general statement this seems to me sufficiently expressive of the principle, but the learned Joint Judge has, I think, misapplied it in the present instance in reliance upon this Court's decision in Jagjivandas Javherdas v. Narayan I.L.R. (1884) Bom 493. The rent note in that case does, no doubt, bear some resemblance to the rent note in this case. But the decision in Jagjivandas's ease is only good for the principle which it expounds. That principle is that the test to apply is to consider 'whether the document does or does not create an interest by way of lease extending beyond one year.' In that case the learned Judges were of opinion that no such interest was created by the document then before them. It may be observed that the appeal was decided without argument on behalf of the respondent. But, waiving that reflection, it is clear that the words of the kabulayat then before the Court were by no means identical with the words which we have now to construe. In the rent note then before the Court the tenant stated 'I will continue to pay you rice annually as stated above so long as you will keep the land in my possession.' That phrase, so far as the report shows, stood isolated and alone and in its position the learned Judges construed it as a stipulation giving the landlord complete power to resume possession whenever he chose. Mr. Thakor has contended that the same effect must be given to the words 'so long as you give us the fields for cultivation' occurring in the kabilayat now before us. Hut in my opinion these words are not susceptible of this interpretation. For, first, it is clear from the context that the object of the words is not to describe the term or duration of the lease, which indeed is reserved for later mention, but to impose on the tenant an obligation to pay the Government assessment for a certain period. That period in this village-made document is described as ' so long as you give us the fields for cultivation.' But this phrase, as I read it, is only a usual and polite way of saying ' so long as I am in fact your tenant.' An Indian tenant addressing an Indian landlord would, I think, naturally use this permissive form of words without any further meaning than I have stated. The phrase cannot, in my view, be strained so as/to be read as constituting a stipulation that the landlord shall be empowered to re-enter whenever he elects to do so. This view seems to me supported by the later language of the kabula-yat. For the final clause provides, as I have set out, that the landlord shall have power to re-enter on the occurrence of a particular named event, that is to say, the practice of a specified fraud by the tenant. But if the earlier phrase gave the landlord complete authority to resume possession at any moment dictated by his own mere will or caprice, it would have been obviously unnecessary to insert these later words empowering the landlord to determine the tenancy on the occurrence of particular misbehaviour on the part of the tenant.
6. On these grounds, reading the terms of the rent note which we have to construe and having regard to the roughness and inartificiality of the document, I am satisfied, that the intention of the parties was to create and that by this document they have created, an interest by way of lease extending beyond one year.
7. I think, therefore, that the appeal must be allowed, the lower appellate Court's order must be set aside and the appeal must be remanded to the lower Court for decision according to law.
8. The appellant will have his costs of this appeal, but other costs will be costs in the cause.
9. I concur.